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Monday, February 15, 2016

¡Not so fast all you pundits!: DID THE TEACHERS UNIONS PIN THEIR HOPES ON ANTONIN SCALIA GOING ROGUE?

Public Sector Unions Pin Hopes on
Antonin Scalia Going Rogue

Posted on
Jan 12, 2016 :: You
know that public employee unions are in dire legal straits when their best
chance for survival may rest with the Supreme Court’s most volatile, cranky and
impulsive conservative: Antonin Gregory Scalia. Yet, according to some very
sophisticated, progressivecourt watchers,
that is the exactly the situation in the latest assault on public union
operations, in the case of Friedrichs v. California
Teachers Association(CTA).

Argued
before the justicesMonday,
Friedrichs concerns the right of unions to collect limited “fair-share” fees
from nonmember employees in lieu of full formal dues to help defray the costs
of collective bargaining.

By any
yardstick, the case packs blockbuster potential, both legally and politically.
A decision against the 325,000-member teachers association could harm every
government employee union in the country, draining their coffers and
conceivably sending some into bankruptcy. In the process, the nation’s entire
public sector would become one uniform right-to-work jurisdiction.

To
understand why some observers believe that Scalia, who rarely aligns with
liberal causes, might play the critical role of swing voter in Friedrichs, a
little digression is required, but rest assured: We’ll get back to him.

The
plaintiffs in Friedrichs are the Christian Educators Association International
and 10 anti-union California schoolteachers, including lead litigantRebecca Friedrichs,
who has taught kindergarten through fourth grade for nearly three decades in
Orange County. They object to paying fair-share fees to the CTA. All were once
CTA members but havesince resigned.

Collectively,
the plaintiffs are represented by the Center for Individual Rights (CIR), a
nonprofit, ultra-right-wing law firm in Washington, D.C., that has made a name
for itself in suits opposing affirmative action, the Voting Rights Act,
Obamacare and the Association of Community Organizations for Reform Now.
According to SourceWatch.org,
the CIR is funded by many of the American right’s big-money patrons, such as
the Lynde and Harry Bradley Foundation and the Koch brothers’ Donors Trust
network.

Although
the CIR handles much of its docket with its own in-house counsel, it has teamed
up on Friedrichs with conservative super-lawyer Michael Carvin of the powerful
Jones Day law firm.

Carvin
and the CIR contend that collective bargaining in the public sector is
inherently political and that, as a result, the fair-share system violates the
First Amendment rights of nonunion workers. The amendment, they note, protects
not only the affirmative right to speak without governmental interference, but
also the passive right to not be compelled by government to speak or endorse
the offending speech or acts of other individuals or groups. Requiring
dissenting employees to pay fees to a union they don’t want to join, their
analysis continues, amounts to such compelled speech and must be declared
unconstitutional across the board.

To
carry the day, however, the plaintiffs will have to persuade a majority of five
justices to overrule a landmark 1977 decision dealing with government unions,
one handed down long before any current justice’s tenure on the court began—Abood v. Detroit Board of
Education—which upheld the constitutionality of fair-share
arrangements.

This is
where Scalia enters the picture.

Prior
to the oral arguments in Friedrichs, Chief Justice John Roberts, along with
Justices Samuel Alito, Clarence Thomas and Anthony Kennedy, clearly seemed
poised to jettison Abood, based on their prior voting records in cases on the
fair-share question. A close reading of Scalia’s previous pronouncements on
Abood, however, suggested that he might not be ready to fall in line, at least
not entirely.

Oral
arguments are sometimes poor barometers of how the justices ultimately will
vote. Sometimes they play devil’s advocate, and sometimes they ask questions
because they haven’t yet made up their minds. But the court’s nine members
appeared to divide sharply along familiar ideological lines in the Friedrichs
hearing, with the panel’s Democratic appointees supporting the CTA, and its
five Republicans—including Scalia—siding with the plaintiffs.

Justice
Kennedy remarkedduring the argumentsthat fair-share fees “are matters of
public concern” and amounted to “coerced speech.” Dissenting employees, he
charged, are “being silenced” by being forced to pay them.

Scalia,
while not tipping his hand, was described byNew York Times reporter Adam
Liptak, who attended the session, as “consistently hostile” to
the union. “The problem is that everything that is collectively bargained with
the government is within the political sphere,” Scalia said from the bench,
echoing the CIR’s request to overrule Abood.

Under
Abood and other provisions of current labor law generally, no one can be forced
to join a union, even one that has been selected by a majority of workers to
negotiate on their behalf. States are also free to enact right-to-work
measures, as25 have to date,
prohibiting unions from demanding fair-share fees from nonmembers. But because
of Abood and other cases decided in succeeding years, in non-right-to-work
states like California, fair-share fee arrangements are lawful in the public
sector (as they are privately), and they are mandatory once a union has been
duly elected.

In
fair-share venues, dissenting nonunion workers typically are billed in the form
of payroll deductions for full regular union dues. They then have the right
annually to “opt out” of making full payments, remitting instead only the
portion that is needed to match the union’s bargaining expenses. Fair-share
fees (also called “agency fees” in reference to the union’s status as the sole
agent authorized to act on bargaining) cannot be used to pay for other union
expenses, such as contributions to political campaigns and most lobbying.

As
Abood recognized, the fair-share system is designed to equitably distribute the
cost of union activities among those who benefit. The system is also aimed at
countering the incentive that employees might otherwise have to become “free
riders” who refuse to contribute to unions while reaping the advantages they
bring, including higher wages, pensions, health insurance, and assistance with
workplace grievances and employer disciplinary hearings.

The
free-rider problem is real and significant. In California and most other
jurisdictions, even in right-to-work states where unions operate, unions have a
duty to represent and enforce the contractual rights ofallemployees in a bargaining unit, both
members and nonmembers alike.

Such
services don’t come cheap. The fair-share fee for the estimated9.7 percentof California teachers who, like
Rebecca Friedrichs and her co-plaintiffs, have opted not to join their union
comprises about68 percentof full membership dues.

There
is little question that in return they receive a handsome payout. According to
figures compiled byThe Century Foundation, unionized teachers
on average earn an hourly wage 24.7 percent higher than their nonunion
counterparts.

Should
Friedrichs and her cohorts prevail in their quest to topple the fair-share
system, more teachers no doubt wouldleave the CTA,
reasoning that they could retain the gains of union contracts without paying a
dime for them. Public employees in other occupations probably would do the
same, believing that they too could free ride without adverse consequences.

During
the oral arguments, attorney Carvin sought to assure the justices that the loss
of fair-share fees would have a minimal impact on union membership. The
evidence, however, shows that he is dead wrong.

If the
recent labor strife in Wisconsin is any bellwether, a plaintiffs’ victory in
Friedrichs could be disastrous for unions and the benefits they deliver. In the
aftermath of Gov. Scott Walker’s 2011 assault on public unions and the state’s
subsequent implementation of right-to-work policies, for example, the declines
in public union membership and dues collected have been monumental.

The
Madison local of the American Federation of State, County and Municipal
Employees has lost 18,000of its previous 32,000 members and has
seen its annual revenue fall from $10 million to $5.5 million. The state’s
largest teachers union, the Wisconsin Education Association Council,has lost more than a thirdof its members. As the Wisconsin
experience shows, free riding isn’t free.

For all
theloopy phrasesin his recent court opinions—“argle
bargle,” “jiggery pokery,” “pure applesauce,” to invoke just a few—and
notwithstanding his regressive positions on such issues as gay marriage,
Obamacare, the Second Amendment, affirmative action and voting rights, Scalia
in the past has expressed a distaste for free riders.

In
1991, in a case (Lehnert v. Ferris Faculty
Association) involving the relevance of the Abood decision to a
small Michigan state college, Scalia penned an opinion in which he found the
fair-share system served a compelling state interest in workplace regulation,
declaring:

Our First Amendment
jurisprudence ... recognizes a correlation between the rights and the duties of
the union, on the one hand, and the nonunion members of the bargaining unit, on
the other. Where the state imposes upon the union a duty to deliver services, it
may permit the union to demand reimbursement for them; or, looked at from the
other end, where the state creates in the nonmembers a legal entitlement from
the union, it may compel them to pay the cost.

But
that was 25 years ago. The question now is whether Scalia will remain
consistent or join with the court’s other conservatives to end the fair-share
system once and forever. Those who hope for consistency can point to other
areas of the law—for example, Fourth Amendment privacy issues—in
which Scalia, despite amassing an enormously right-wing record overall, has
displayed occasional maverick tendencies.

Should
the maverick Scalia reappear in Friedrichs when the opinion is finally handed
down, there will be ample grounds for rejecting the plaintiffs’ First Amendment
analysis. In addition to affirming the compelling purpose of the fair-share
system, the court, with Scalia as the fifth swing vote, could recognize that
union dissenters like Rebecca Friedrichs in fact have sustained no substantial
First Amendment injuries.

Despite
their fair-share payments, Friedrichs and company remain free to speak out
against their union and its views. No reasonable person would construe their
payment of fair-share fees as an ideological endorsement of the union. Indeed,
as the solicitor general has observed inhis brief in the case,
the inference to be drawn about the beliefs of fair-share employees is just the
opposite.

In the
end, unfortunately, the pull of party politics may prove too strong for Scalia.
In 2012 (Knox v. SEIU) and
again in 2014 (Harris v. Quinn),
Scalia joined his Republican brethren in 5-4 opinions that chipped away at the
fair-share system and criticized but fell short of overruling Abood.

The
Knox and Harris cases, however, dealt with more limited issues than Friedrichs.
Knox concerned a midyear dues assessment imposed on state workers to defeat two
anti-union measures placed on the 2005 California ballot by then-Gov. Arnold
Schwarzenegger, a Republican. The Harris case involved Illinois in-home care
providers, who were held not to be full-fledged public employees. Both cases
were financed and litigated by the National Right to Work Legal Defense
Foundation.

Whatever
the final lineup of the justices proves to be in Friedrichs, the court’s
decision will have profound political ramifications.

Public
unions are the last bastion of organized labor in America. In 2014, the
percentage of unionized wage and salary workers in the U.S.dropped to 11.1 percentfrom 20.1 percent in 1983. The
unionization rate in the private sector stands at an abysmal 6.6 percent. The
public sector, by contrast, boasts an aggregate unionization rate of 35.7
percent.

Unions
are also a consistent supporter of Democratic Party candidates and initiatives,
spending, according to some estimates,over $1.7 billionon political campaigns in the 2012
election cycle.

The
American right has long demonized unions, particularly in the public sphere,
falsely blaming them instead of Wall Street and the crippling financial crisis
of 2007-2008 for municipal bankruptcies and pension fund shortfalls around the
country. Influential segments of the right, such asthe Cato Institute,
have openly called for public-sector collective bargaining to be outlawed
nationwide for all workers, as it has been for schoolteachers inGeorgia, North Carolina, South Carolina, Virginia and
Texas.

As I’ve
written beforein this column, the right’s lesson plan is
simple: “Kill the fair-share regime and you kill public sector unions. Kill
public sector unions and you kill off the labor movement as a whole.” In the
end, the only parties left unscathed will be the big-money corporate donors who
have bankrolled the anti-union crusade for decades.

Will
Scalia buck the tide and come to the rescue of the unions? We won’t know for
certain until the court’s term ends in June. In the meantime, don’t count on
it.